Harassment Case Against Utah Judge Revived

(CN) – A former court administrator who says a “touchy” Utah judge often rubbed his groin on her, and wrote her a romantic poem, has a case for harassment, the 10th Circuit ruled. Marcia Eisenhour says she was fired after 24 years of service to the Justice Court of Weber County, Utah, because she complained about having been harassed by Justice Craig Storey. Eisenhour has alleged that Storey “became ‘touchy’ and would often stand so close to her that his groin would rub against her,” according to the ruling. He also once allegedly called her into his office and “told her that he had a dream about her in which she was naked.” Eisenhour has also claimed that she found a poem by Storey, revealing his romantic feelings for her, in a stack of papers he gave her to file. Though Eisenhour had previously been allowed to work flexible hours and miss work without prior approval, Storey allegedly started in 2008 to make Eisenhour acquire consent by telling him “where she was going, what she was doing and whom she would be with.” Eisenhour reported Storey to the county attorney’s office because she deemed the policy as “possessive” and controlling. When both the county and Utah’s Judicial Conduct Commission refused to discipline Storey and dismissed Eisenhour’s claims, Eisenhour went to the press and two papers ran articles about her allegations. In 2009, citing revenue loss, county commissions closed the justice court and allowed Storey to retire with benefits. Eisenhower meanwhile was left jobless. She sued Weber County, Storey and three county commissioners in 2010 for alleged violations of Utah’s Whistleblower Act, the First and 14th Amendments, and Title VII, the federal civil rights law that prohibits sex discrimination in employment. U.S. District Judge Dee Benson ruled against Eisenhour, however, finding that her whistle-blower claims were time-barred and that Storey had qualified immunity. Benson tossed the Title VII claim for lack jurisdiction, and found no equal-protection issues since Storey was not an official policymaker. In rejecting the First Amendment claim, Benson said Eisenhour had not engaged in protected speech. The due-process claim failed meanwhile because Benson said Eisenhour had not established a property interest in her employment. A three-judge panel of the 10th Circuit reversed on Dec. 31, finding that issues of material fact precluded an award of summary judgment. Since the justice court was actually generating a net profit before Weber County closed it, a jury could find that the decision was motivated by Eisenhour’s remarks to the media, according to the ruling. “Summary-judgment evidence would allow a reasonable fact-finder to conclude that the county terminated Ms. Eisenhour because of her comments to the media,” Judge Robert Bacharach wrote for the Denver-based court. “This evidence includes: (1) the timing of the county’s announcement that it would close the justice court, and (2) the court’s profitability.” Eisenhour’s comments to the media moreover involved protected speech, and “she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the county’s decision to close the court,” the 28-page ruling continues. The court Eisenhour’s claims under the Whistleblower Act and her Section 1983 claims against the county and Storey under the First and 14th Amendments, but otherwise affirmed Benson’s order. Weber County, pop. 236,640 in 2012, is located north of Salt Lake City. Bacharach was joined by Judges Neil Gorsuch and Bobby Baldock in the decision.